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EXHIBIT 10.5
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
This Non-competition and Non-disclosure Agreement (the "Agreement"), is
entered into this 9th day of February, 1998, by and between KEY PLASTICS
TECHNOLOGY, L.L.C., a Michigan Limited Liability Company, of 00000 Xxxxxxxx
Xxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000 (the "Company") and XXXX X. XXXXXX ("Xx.
Xxxxxx").
Statement-of Facts
The Company is engaged in the business of manufacturing, designing,
marketing and supplying highly engineered plastic components and assemblies to
automotive original equipment manufacturers ("OEMs") in Michigan, Pennsylvania,
Ohio, Indiana, the United Kingdom, Mexico, Portugal and France. Xx. Xxxxxx
serves on the management committee of the Company and as a consultant to the
Company. As a result of his services to the Company and his operation of the
business, Xx. Xxxxxx has obtained and will obtain certain proprietary, secret
and confidential information concerning the business of the Company including
without limitation, product engineering and design information, financial and
organizational information, the identity of customers and sources of supply,
their needs and requirements, the nature and extent of contracts with them, and
related cost, price and sales. Part of Xx. Xxxxxx'x compensation is being paid
to preserve the confidential nature of such information. Accordingly, the
parties have agreed that this confidence shall be maintained while Xx. Xxxxxx
continues to provide services to the Company and for a reasonable period of time
in the event either party terminates the consulting relationship.
Agreement
In consideration of the above facts and the mutual covenants of the
parties, IT IS AGREED:
1. Except in the course of fulfillment of his obligations as a
consultant of the Company, Xx. Xxxxxx shall at no time during the term of this
Agreement or for a period of six (6) months
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immediately following the termination of his relationship with the Company
("Restricted Period"), engage in the business of manufacturing, designing,
marketing and supplying plastic automotive components and assemblies to
automotive OEMs in any location within a fifty (50) mile radius of any facility
of the Company ("Prohibited Business"), provided, however, that this Agreement
shall not prohibit the executive from participating in the business of Complex
Tooling & Molding Inc., a plastics manufacturer for the telecommunications and
computer industry. Xx. Xxxxxx shall not engage in the Prohibited Business for
the Restricted Period, directly or indirectly, either for himself or on behalf
of any other person, firm, corporation, company or other entity, whether as an
officer, director, employee, partner, sole proprietor, agent, representative,
independent contractor, consultant, franchisor, franchisee, creditor, owner or
otherwise.
2. Unless Xx. Xxxxxx shall first obtain the Company's written
permission, he shall not disclose or use at any time, either during or
subsequent to his performance of services for the Company, any secret,
privileged, confidential or proprietary information concerning the Company,
whether or not patentable, copyrightable or otherwise protectable, of which Xx.
Xxxxxx becomes aware during his performance of services for the Company, whether
or not developed by Xx. Xxxxxx, except as required in Xx. Xxxxxx'x duties to the
Company. Confidential information shall include information concerning the
Company not generally known in the business community, including, but not
limited to information concerning the Company's customer lists, supplier lists,
price lists, sales and service records, equipment, apparatus, processes,
methods, improvements, inventions, data, sales figures, projections, quotations,
estimates, accounting and billing procedures, other records, personnel history,
trade secrets, reports, budgets and other financial information, the
acquisition, installation and utilization of equipment and procedures,
technological developments, "know-how",
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computer programs, and the like. This information, as well as all records,
files, plans, sketches, notes, notebooks, letters, software, computer tapes or
diskettes, or other physical records or documents relating to the business of
the Company, or copies thereof, which Xx. Xxxxxx shall use, prepare or come in
contact with, shall remain the sole property of the Company, and Xx. Xxxxxx
shall, upon termination of his services for the Company, promptly return all
such material in his possession and control to the Company. All right, title,
and interest of every kind and nature, whether now known or unknown, in and to
any intellectual property, including, but not limited to, any inventions,
patents, trademarks, service marks, copyrights, films, scripts, ideas,
creations, and properties invented, created, written, developed, improved or
produced by Xx. Xxxxxx, alone or with others, in the course of rendering
services to the Company shall, as between the Company and Xx. Xxxxxx, be and
remain the sole and exclusive property of the Company for any and all purposes
and uses, and Executive shall have no right, title, or interest of any kind or
nature in or to such property, or in or to any results and/or proceeds from such
property. Xx. Xxxxxx agrees to assist the Company, at the Company's expense, to
obtain patents or copyrights on any such patentable or copyrightable ideas,
inventions, and other developments, and agrees to execute all documents
necessary to obtain such patents or copyrights in the name of Company.
3. Xx. Xxxxxx shall not be bound by the terms of this Agreement in the
event his consulting services are terminated by the Company or by a successor to
the Company for any event except termination by the Company for "good cause."
"Good cause" shall mean any one or more of the following occurrences:
(a) Xx. Xxxxxx'x conviction, or entry of a plea of nolo
contendere, in a court of competent and final jurisdiction for any felony crime
involving moral turpitude or punishable by
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imprisonment in the jurisdiction involved;
(b) Xx. Xxxxxx commits an act of fraud, misappropriation,
embezzlement, or acts of dishonesty upon the Company;
(c) Xx. Xxxxxx'x breach of the terms of any agreement
between the Company and Xx. Xxxxxx; (
(d) Xx. Xxxxxx'x willful misconduct; or
(e) Xx. Xxxxxx'x breach of fiduciary duty to the Company.
Additionally, Xx. Xxxxxx shall not be bound by the terms of
this Agreement in the event that his consulting services are terminated by the
Company or any successor thereto following a Change in Control. A "Change in
Control" shall mean the (i) sale of all or substantially all of the assets of
the Company to an unaffiliated third-party, or (ii) a merger or other exchange
involving the Company with an unaffiliated third-party in which the members of
the Company immediately prior to such transaction do not own a majority of the
outstanding equity interests of the entity surviving such transaction.
4. Xx. Xxxxxx agrees that violation of this Agreement may cause
irreparable harm to the Company. If the Company brings legal action to prevent
Xx. Xxxxxx from violating this Agreement, Xx. Xxxxxx consents to the entry of a
court order enjoining further violation of the Agreement. The equitable relief
permitted by this paragraph 4 shall not prejudice the Company's rights to other
legal remedies.
5. Xx. Xxxxxx acknowledges that nothing in this Agreement shall be
deemed to create any expectations or promises as to job security or advancement.
This Agreement shall not change in any way the terms and conditions of Xx.
Xxxxxx'x engagement by the Company, but only states
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specifically certain covenants relating to the relationship between the Company
and Xx. Xxxxxx.
6. This Agreement embodies the entire agreement and understanding
between the parties hereto and there are no other agreements or understandings,
oral or written, between the parties hereto with respect to the subject matter
hereof, and this Agreement shall supersede all previous agreements,
negotiations, commitments and writings with respect to the subject matter
hereof. In the event any provision of this agreement or portion thereof is found
to be wholly or partially invalid, illegal or unenforceable in any judicial
proceedings, then such provision shall be deemed to be modified or restricted to
the extent and in the manner necessary to render the same valid and enforceable,
or shall be deemed excised from this Agreement, as the case may require, and
this Agreement shall be construed and enforced to the maximum extent permitted
by law, as if such provision had been originally incorporated herein as so
modified or restricted, or as if such provision had not been originally
incorporated herein, as the case may be.
7. Any modification of this Agreement must be made in writing and
signed by both parties.
8. This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of Michigan, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Michigan or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Michigan. This Agreement may be executed in
any number of counterparts, each of which shall constitute an original, but when
taken together shall constitute but one instrument.
9. This Agreement shall be binding upon Xx. Xxxxxx and Xx. Xxxxxx'x
executors, administrators and assigns, and shall inure to the benefit of the
Company and its successors and assigns.
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10. No failure on the part of either party to exercise, and no delay in
exercising or course of dealing with respect to, any right, power or privilege
under this Agreement (or breach of any obligation under any other agreement)
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement or any other agreement (or
breach of any obligation under any other agreement) preclude any other or
further exercise thereof or hereunder, or the exercise of any other right, power
or privilege. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law.
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IN WITNESS OF WHICH, the parties have executed this Agreement as
of the date first written above.
KEY PLASTICS TECHNOLOGY, L.L.C.
By: /s/ Xxxx X. Xxxx
Its: Treasurer
/s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX
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